the power of a federal appellate court to direct entry of

The Journal of Appellate Practice and Process The Journal of Appellate Practice and Process

Volume 3 Issue 1 Article 7

2001

The Power of a Federal Appellate Court to Direct Entry of The Power of a Federal Appellate Court to Direct Entry of

Judgment as a Matter of Law: Reflections on Weisgram v. Marley Judgment as a Matter of Law: Reflections on Weisgram v. Marley

Co. Co.

Robert A. Ragazzo

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THE POWER OF A FEDERAL APPELLATE COURT TODIRECT ENTRY OF JUDGMENT AS A MATTER OFLAW: REFLECTIONS ON WEISGRAM v. MARLEY CO.

Robert A. Ragazzo*

The civil jury plays an important role in our democraticsociety. Commentators have often waxed eloquent on thisfundamental feature of the Anglo-American judicial system.Blackstone described the right to a jury trial as "the glory of theEnglish law" and "the most transcendent privilege which anysubject can enjoy."' Justice Story wrote: "The Constitutionwould have been justly obnoxious to the most conclusiveobjection if it had not recognized and confirmed [the right to ajury trial] in the most solemn terms." 2

In modem times, some have been more sanguine about theright to a jury trial in civil cases. The civil jury has beencriticized on a number of grounds.3 The jury is often far from arepresentative cross-section of the community. a The jury maynot be particularly good at finding facts,5 especially in complex

* George Butler Research Professor of Law, University of Houston Law Center. B.A.

1982, Fordham; J.D. 1985, Harvard.1. William Blackstone, Commentaries on the Laws of England vol. 3, *379 (Garland

Publg. 1978).2. Joseph Story, Commentaries on the Constitution of the United States, vol. II, §

1779,558-59 (Little, Brown & Co. 1891).3. For an article surveying the various criticisms of the civil jury and attempting an

empirical refutation of these criticisms, see Neil Vidmar, The Performance of the AmericanCivil Jury: An Empirical Perspective, 40 Ariz. L. Rev. 849 (1998).

4. See Warren E. Burger, Thinking the Unthinkable, 31 Loy. L. Rev. 205, 210-11(1985) (suggesting that "[w]e must stop deluding ourselves" because "[t]he juries actuallyselected in most protracted cases are rarely true cross-sections").

5. See Jerome Frank, Law and the Modern Mind 180-81 (Brentano's 1930) (arguingthat jurors "are hopelessly incompetent as fact finders" and that "no one can be fatuousenough to believe that the entire community can be so educated that a crowd of twelve menchosen at random can do, even moderately well, what painstaking judges now find itdifficult to do").

THE JOURNAL OF APPELLATE PRACTICE AND PROCESS Vol. 3, No. 1 (Spring 2001)

THE JOURNAL OF APPELLATE PRACTICE AND PROCESS

cases.6 Finally, the jury may be swayed by sympathy and is oftenthought to display a pro-plaintiff bias.7

The twentieth century has seen the development ofmechanisms that allow the bench to exercise control over thecivil jury's function. The United States Supreme Court hasupheld against Seventh Amendment attack the power of trialjudges to remove cases from the jury's province and grantjudgment as a matter of law where one party's proof isinsufficient.8 In a trilogy of cases decided in 1986, the SupremeCourt molded the summary judgment procedure into a gate-keeping mechanism that allows the trial judge to dismissmeritless cases prior to the commencement of trial.9

6. See Franklin Strier, Reconstructing Justice: An Agenda for Trial Reform 111-12(Quorum Books 1994) (arguing that "jurors lack adequate memories for recalling trialtestimony and have difficulties making decisions based on statistical or probabilisticinformation" and that "an especially perplexing task for lay jurors is to assimilate andselect in some rational manner from the competing testimony of expert witnesses");Burger, supra n. 4, at 211 (noting that in complex cases "[t]he analysis of documents, ofexpert testimony, of charts, graphs and other visual aids, and the comprehension of suchevidence, present problems which often only a sophisticated business executive, aneconomist, or another expert could grasp").

7. See e.g. Hiroshi Sarumida, Comparative Institutional Analysis of Product SafetySystems in the United States and Japan: Alternative Approaches to Create Incentives forProduct Safety, 29 Cornell Intl. L.J. 79, 111 (1996) (citing a study by the RANDcorporation that "confirmed the pro-plaintiff attitude of juries when defendants werecorporations and plaintiffs suffered severe injuries"). But see Anthony Z. Roisman,Conflict Resolution in the Courts: The Role of Science, 15 Cardozo L. Rev. 1945, 1954(1994) (noting that "studies have found that juries are increasingly pro-business and anti-plaintiff, thanks in part to the propaganda from tort reform advocates").

8. See Galloway v. U.S., 319 U.S. 372 (1943) (upholding the power to grant judgmentas a matter of law before the jury returns a verdict); Baltimore & Carolina Line, Inc. v.Redman, 295 U.S. 654 (1935) (upholding the power to grant judgment as a matter of lawafter the jury returns a verdict). These cases are discussed in Part II.A.

9. See Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, Inc.,477 U.S. 242 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574(1986). In Anderson, the Court held that "the appropriate summary judgment question willbe whether the evidence in the record could support a reasonable jury finding" that theplaintiff has proved his case by the relevant evidentiary standard. Anderson, 477 U.S. at255-56. Thus, the party with the burden of proof can no longer defeat a summary judgmentmotion simply by introducing some evidence (the so-called scintilla rule), and the courtmay consider the entire record in determining what a reasonable jury could find. See alsoFed. R. Civ. P. 50(a)(l) (2000) (codifying the reasonable juror standard). Twocommentators have argued that the Supreme Court's "liberalized summary judgment[standard] inhibits the filing of otherwise meritorious suits and results in a wealth transferfrom plaintiffs as a class to defendants as a class." Samuel Issacharoff & GeorgeLoewenstein, Second Thoughts About Summary Judgment, 100 Yale L.J. 73, 75 (1990).

Reflections on Weisgram v. Marley Co.

The power of federal courts to address meritless casessubsequent to the commencement or completion of trial isauthorized by Rule 50 of the Federal Rules of Civil Procedure,which provides for entry of judgment as a matter of law.' ° Incontrast to the Rule's explicit grant of this power to federaldistrict courts, the United States Supreme Court has consideredthe scope of authority implicitly conferred by Rule 50 uponfederal appellate courts in two significant decisions. In Neely v.Martin K. Eby Construction Co.,' the Court held that a federalappellate court possesses the power to direct entry of judgmentas a matter of law for a verdict loser. More recently, inWeisgram v. Marley Co.,2 the Court affirmed the power offederal appellate courts to reverse and render judgment as amatter of law on behalf of verdict losers where the verdict wasdependent on improperly admitted expert testimony.

This article considers the significance of the Weisgramdecision for federal appellate practice. Part I will review theNeely decision, but will primarily focus on the facts and holdingof Weisgram. Part II will consider whether Neely and Weisgramare correct in holding that federal appellate courts possess theraw power to direct entry of judgment as a matter of law forverdict losers, concluding that they have such power. Part IIIwill discuss the circumstances under which federal appellatecourts should exercise the power to direct entry of judgment as amatter of law, concluding that Weisgram appears overly liberalin delineating such circumstances.

I. BACKGROUND: JUDGMENT AS A MATTER OF LAW

A. Neely v. Martin K. Eby Construction Co.

The Supreme Court first addressed the use of judgment as amatter of law by appellate courts as a means to rid the courts ofunmeritorious cases in Neely v. Martin K. Eby Construction

10. Traditionally, this power was referred to as judgment notwithstanding the verdict.The rule now uses the term judgment as a matter of law. Fed. R. Civ. P. 50 (West Group2000). The author uses the term judgment as a matter of law throughout this article.

11. 386 U.S. 317 (1967).12. 528 U.S. 440 (2000).


Co. 3 In that case, the Court held that a federal appellate courthad the power to direct entry of judgment as a matter of law fora verdict loser where the evidence in the record was insufficientto support the jury's verdict as a matter of law. 4 The plaintiff inNeely received a jury verdict in a negligence action. Thedefendant moved for judgment notwithstanding the verdict onthe ground that the evidence was insufficient to establishnegligence. The trial court denied the defendant's motion andentered judgment on the verdict. The court of appeals reversed,holding that the trial court should have granted the defendant'smotion, and remanded with instructions to dismiss thecomplaint.'5 The Supreme Court held that a federal appellatecourt possesses the power to direct entry of judgment as a matterof law for a verdict loser. 6 The Court held that exercise of thispower is consistent with: (a) the Seventh Amendment; (b) thescope of appellate review contained in 28 U.S.C. § 2106; and (c)Rule 50 of the Federal Rules of Civil Procedure. 7

The Neely Court was mindful of the need to "protect therights of the party whose jury verdict has been set aside onappeal and who may have valid grounds for a new trial." "s TheCourt noted that the verdict winner, in addition to attempting topreserve his verdict and judgment, could make a conditionalnew trial motion in the court of appeals in the event his verdictwas set aside. 9 In some cases, where the appellate court believesthe district court erroneously denied the verdict loser's motionfor judgment as a matter of law, the appellate court shouldremand to permit the district court to consider the verdictwinner's new trial motion due to the district court's superiorfamiliarity with the case.2° Because the verdict winner in Neelyraised no grounds for a new trial in the court of appeals, theSupreme Court held that the court of appeals properly directed

13. 368 U.S. 317 (1967).14. Id. at 321,330.15. See id. at 319-20.16. See id. at 321,330.17. See id. at 322-30.18. Id. at 325.19. The Court noted that the verdict winner could urge his new trial grounds in his brief

to the court of appeals or "in a petition for rehearing if the court of appeals has directedentry of judgment for appellant." Id. at 329.

20. See id. at 325.

Reflections on Weisgram v. Marley Co. 111

entry of judgment as a matter of law for the verdict loser.2' Thus,although Neely court rejected the argument that there is a "totallack of power" in the court of appeals to direct entry ofjudgment as a matter of law,22 it did not hold that the court ofappeals should always, or routinely, use this power.

B. Weisgram v. Marley Co.

In Weisgram v. Marley Co.,23 the Supreme Court returnedto this question. In Weisgram, the plaintiff brought a wrongfuldeath action against the manufacturer of a baseboard heater. Theplaintiff alleged that the heater was defective and malfunctioned,causing a fire that resulted in his mother's death. The plaintiff'sproof on these issues was tendered to the jury through thetestimony of three expert witnesses. The jury's verdict was forthe plaintiff, and the defendant moved for judgment as a matterof law before and after the jury's verdict. The trial judge deniedboth motions and entered judgment on the verdict. The court ofappeals held that the testimony of the plaintiff's three expertsshould not have been admitted and, without this evidence, thatthe plaintiff could not establish a prima facie case. The court ofappeals remanded with instructions to enter judgment as amatter of law for the manufacturer. 4 The Supreme Court heldthat the court of appeals properly directed entry of judgment as amatter of law where the expert testimony was inadmissible andtherefore unavailable to support the jury's verdict.2 5 Without thatevidence, the verdict could not stand.

1. The Facts and Procedural History

On December 30, 1993, Bonnie Weisgram died in herhome as a result of carbon monoxide poisoning caused by a fire.Chad Weisgram, the decedent's son, brought a wrongful deathaction on behalf of himself and his mother's heirs against

21. The verdict winner attempted to raise new trial grounds for the first time in theSupreme Court, and the Court refused to consider these grounds. See id. at 330.

22. Id.23. 528 U.S. 440 (2000).24. See id. at 445.25. See id. at 446, 457.


Marley Company, the manufacturer of a baseboard heater usedin his mother's home.26 The plaintiff's theory of the case wasthat the baseboard heater malfunctioned and caused a fire thatspread to a nearby sofa and spawned the fumes resulting in hismother's death.27 The defendant argued that Bonnie Weisgraminadvertently caused the fire by dropping a lighted cigarettebehind the sofa.28

The plaintiff called three expert witnesses to make his casethat the baseboard heater malfunctioned and caused the fire.Initially, the plaintiff called Dan Freeman, a fire captain whohad performed an investigation for the local fire department.Freeman opined that the burn and smoke patterns indicated thatthe fire started in the entrance to Weisgram's home and radiatedto the sofa. He hypothesized a number of facts: The baseboardheater malfunctioned and emitted excess heat; a throw rugplaced against the heater contained the heat and caused the heatto build up; the heat raised the temperature on the vinyl floor,which caused the release of gases; and these gases ignited andcaused the fire that engulfed the sofa and released the fumes thatkilled Bonnie Weisgram.2 9

Second, the plaintiff called Ralph Dolence, an electricianwhose theory of the fire was the same as Freeman's. Althoughhe could not identify any design or manufacturing defect in theheater, Dolence argued that the heater's thermostat and backuphigh-limit control (which was designed to shut off the heater at190 degrees) malfunctioned, causing the heater to emit excessheat. In Dolence's view, this excess heat was trapped andincreased by the proximity of the throw rug, causing the vinylfloor to heat up and release vapors that ignited and caused thefire.

30

Third, the plaintiff called Sandy Lazarowicz, a metallurgist.He testified that the heater's thermostat contacts weredefectively designed, which caused them to weld shut and

26. See Weisgram v. Marley Co., 169 F.3d 514 (8th Cir. 1999), affd, 528 U.S. 440(2000). State Farm Fire and Casualty Company sued Marley to recover insurance benefitspaid to cover damage caused by the fire. See id. at 516.

27. See id. at 517.28. See id. at 518 n. 4.29. See id. at 518-19.30. See id. at 519-20.


rendered the thermostat cut-off mechanism ineffective.Lazarowicz also theorized that the backup high-limit controlfailed to shut off the heater because the mechanism was placedin a location that prevented it from sensing the actualtemperature of the heater.'

The district court admitted the testimony of plaintiff's threeexperts over the defendant's objection. The jury found for theplaintiff and awarded $500,000 to the plaintiff and BonnieWeisgram's heirs.32 The court of appeals held by a 2-1 vote thatthe district court abused its discretion in admitting the testimonyof plaintiff's experts under Rule 702 of the Federal Rules ofEvidence33 and the Supreme Court's opinion in Daubert v.Merrell Dow Pharmaceuticals, Inc.34

The Eighth Circuit's majority held that Freeman wasqualified to testify as an expert in fire investigation that the burnand smoke patterns indicated a fire that began in theentranceway and spread to the sofa, but that the rest ofFreeman's testimony was "blatant speculation., 35 The majorityemphasized that there was no record evidence on the location ofthe throw rug prior to the start of the fire or the components orphysical properties of the vinyl flooring. The majority alsoviewed Dolence's testimony as "rank speculation. 36 Themajority noted that Dolence had not done any testing to validatehis theory, relied principally on the observations made byFreeman, and could not identify a design or manufacturingdefect in the heater. Similarly, the majority dismissedLazarowicz's opinions as nothing more than "'subjective beliefor unsupported speculation."' 37 The court noted that Lazarowiczhad not tested to determine whether it was possible for the

31. See id. at 520-21.32. See id. at 516. The jury also awarded $100,575.42 to State Farm Fire and Casualty

Company. Id.33. See id. at 521-22.34. 509 U.S. 579 (1993). The Daubert criteria for the admission of expert scientific

testimony are discussed in Part III.B. The court of appeals in Weisgram assumed that theDaubert criteria are generally relevant to all expert testimony, 169 F.3d at 517 n. 3, anassumption later confirmed by the Supreme Court in Kumho Tire Co. v. Carmichael, 526U.S. 137 (1999).

35. Weisgram, 169 F.3d at 518.36. Id. at 520.37. Id. at 521 (quoting Daubert, 509 U.S. at 590).


thermostat contacts to weld shut prior to the fire, and he was notqualified to express an opinion regarding the failure of thebackup high-limit control.

In the majority's view, the plaintiff's case, stripped of thisexpert testimony, was insufficient to survive the defendant'smotion for judgment as a matter of law. The majority stated,

We reject any contention that we are required to remand fora new trial because our failure to do so would deny theplaintiffs the opportunity to reopen discovery and identifyadditional witnesses who might testify to their theory ofliability. Although [Federal Rule of Civil Procedure 50(d)]certainly gives this Court the discretion to remand for anew trial, we can discern no reason to give the plaintiffs asecond chance to make out a case of strict liability .... Thisis not a close case. The plaintiffs had a fair opportunity toprove their claim and they failed to do so."As a consequence, the court of appeals vacated the

judgment of the district court and remanded with instructions toenter judgment as a matter of law for the defendant, MarleyCompany.

2. The Supreme Court Opinion

The Supreme Court granted certiorari to resolve a conflictamong the courts of appeals regarding whether Rule 50 "permitsan appellate court to direct the entry of judgment as a matter oflaw when it determines that evidence was erroneously admittedat trial and that the remaining, properly admitted evidence isinsufficient to constitute a submissible case., 40 A unanimous

38. Weisgram, 169 F.3d at 517 n. 2.39. See id. at 522.40. Weisgram v. Marley Co., 528 U.S. 440, 441 (2000). The Eighth Circuit in

Weisgram followed its previous decision in Wright v. Willamette Indus., Inc., 91 F.3d1105, 1108 (8th Cir. 1996) and agreed with two other circuits in holding that a federalappellate court may direct entry of judgment as a matter of law after subtractingerroneously admitted evidence. See Redman v. John D. Brush & Co., Ill F.3d 1174, 1178-79 (4th Cir. 1997); Smelser v. Norfolk Southern Ry. Co., 105 F.3d 299, 301, 306 (6th Cir.1997), cert. denied, 522 U.S. 817 (1997); see also Aloe Coal Co. v. Clark Equip. Co., 816F.2d 110, 115-16 (3d Cir. 1987) (dictum), cert. denied, 484 U.S. 853 (1987). The TenthCircuit, by contrast, had held that an appellate court should not direct entry of judgment asa matter of law in such circumstances because the verdict winner may have relied on thetrial court's evidentiary rulings. See Kinser v. Gehl Co., 184 F.3d 1259, 1267, 1269 (10thCir. 1999), cert. denied, 120 S. Ct. 985 (2000). A number of other appellate courts had held


Court answered the question in the affirmative. The Court reliedon its prior decision in Neely v. Martin K. Eby ConstructionCo. 4

1 to establish that the court of appeals possessed the power todirect entry of judgment as a matter of law.42 The Court rejectedany policy distinction between

cases in which judgment as a matter of law is requestedbased on plaintiff's failure to produce enough evidence towarrant a jury verdict, as in Neely, and cases in which theproof introduced becomes insufficient because the court ofappeals determines that certain evidence should not have

43been admitted, as in the instant case.There are two strands to the Court's reasoning. On one

hand, the Court rejected the plaintiff's contention that it wasunfair to allow an appellate court to direct entry of judgment as amatter of law because, had the plaintiff known that its expertwitnesses could not testify, he would have had the opportunityto present other experts or other proof in the district court. TheCourt suggested that any reliance placed by the plaintiff on thedistrict court's admissibility rulings was inappropriate:

Since Daubert ... parties relying on expert evidence havehad notice of the exacting standards of reliability suchevidence must meet. It is implausible to suggest, post-Daubert, that parties will initially present less than theirbest expert evidence in the expectation of a second chanceshould their first try fail .... [A]lthough Weisgram was on

that it was improper for the trial judge to grant judgment as a matter of law after decidingto exclude evidence presented to the jury. See Schudel v. Gen. Elec. Co., 120 F.3d 991, 995(9th Cir. 1997), cert. denied, 523 U.S. 1094 (1998); Jackson v. Pleasant Grove HealthCare Center, 980 F.2d 692, 695-96 (1 Ith Cir. 1993); Douglass v. Eaton Corp., 956 F.2d1339, 1343-44 (6th Cir. 1992); Persinger v. Norfolk & Western Ry. Co., 920 F.2d 1185,1188-89 (4th Cir. 1990); Sumitomo Bank of Cal. v. Prod. Promotions, Inc., 717 F.2d 215,218 (5th Cir. 1983); Townsend v. U.S. Rubber Co., 392 P.2d 404, 406 (N.M. 1964). But seeLightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1198-99 (3d Cir. 1993). Indeed, theEighth Circuit had previously concurred with this limitation on the district court's power.See Midcontinent Broad. Co. v. N.C. Airlines, Inc., 471 F.2d 357, 358-59 (8th Cir. 1973).Because an appellate court's entry of judgment as a matter of law raises more seriousconcerns than a trial court's, as discussed in Part II.B, the courts expressing the view thata trial judge is required to take the record as presented to the jury in ruling on a motion forjudgment as a matter of law may be viewed as agreeing with the Tenth Circuit's opinion inKinser.

41. 386 U.S. 317 (1967).42. See Weisgram, 528 U.S. at 450.43. Id. at 452.


notice every step of the way that Marley was challenginghis experts, he made no attempt to add or substitute otherevidence."Following this strand of reasoning, an appellate court that

views one party's proof as factually insufficient after deletingimproperly admitted evidence has no reason to hesitate indirecting entry of judgment as a matter of law after deletinginadmissible evidence. There is a presumption that every partypresents its best case to the district court and, had the verdictwinner known that certain of his evidence would beinadmissible, that he would have had no other evidence topresent.

On the other hand, the Court reiterated that a verdict winnerfaced with a motion for judgment as a matter of law could, inaddition to opposing the motion, make a conditional motion fora new trial.4 The Court reaffirmed its position in Neely that"there are myriad situations in which the determination whethera new trial is in order is best made by the trial judge." 4 6 TheCourt did not, however, view the instant case to be in thiscategory. It noted that "Weisgram offered no specific groundsfor a new trial to the Eighth Circuit ' 47 and that, in the view ofthe court of appeals, this was "not a close case." 48 Thus, as inNeely, the Court's narrow holding was only that the court ofappeals has the power to direct entry of judgment as a matter oflaw after excluding improperly admitted evidence. Its suggestionthat this power can be liberally exercised is neverthelesstroubling.

Weisgram involves a significant extension of Neely becausethe plaintiff's proof was concededly sufficient based on therecord evidence. The problem was not that the jury reached anunreasonable conclusion based on the record; rather, theproblem was that the record was tainted by the trial judge'simproper admission of certain evidence. The verdict winner in

44. Id. at 455 (internal citations omitted).

45. The Court noted, as it had in Neely, that a verdict winner could present his new trialgrounds in his brief to the court of appeals or a petition for rehearing. See Weisgram, 528U.S. at 455 n. 11; see also supra n. 19 and accompanying text.

46. Weisgram, 528 U.S. at 456.47. Id.48. Id.


Weisgram may well have relied on the trial judge's admissibilityrulings in deciding what other evidence to present. Had theverdict winner known that the testimony of his three profferedexperts would not be admissible, he might have tendered otherexperts or searched for other proof that the baseboard heater wasdefective and caused the fire. Although Weisgram, like Neely,permits the court of appeals to remand to the trial court thequestion whether the verdict winner should be granted a newtrial,49 it raises troubling questions regarding the appellatecourt's power finally to resolve a case by directing entry ofjudgment as a matter of law.

II. THE POWER OF A FEDERAL APPELLATE COURT TO DIRECTENTRY OF JUDGMENT AS A MATTER OF LAW

The Supreme Court in Neely and Weisgram held that afederal appellate court's power to direct entry of judgment as amatter of law is consistent with three legal provisions: (a) theSeventh Amendment to the United States Constitution; (b) 28U.S.C. § 2106; and (c) Rule 50 of the Federal Rules of CivilProcedure. This Part examines each justification in turn.

A. The Seventh Amendment

The Seventh Amendment states: "In Suits at commonlaw.... the right of trial by jury shall be preserved, and no facttried by a jury, shall be otherwise reexamined in any Court ofthe United States, than according to the rules of the commonlaw."50 Because the Seventh Amendment preserves rather thancreates the common law right to a jury trial, the Supreme Courthas long held that the amendment mandates an historicalinquiry. Despite the fact that the United States had been anindependent country for fifteen years in 1791 (the date of theSeventh Amendment's adoption), the Court has also long heldthat the historical reference is to the jury trial practice of theEnglish common law courts in 1791 rather than the courts of the

49. See id. at 451, 457.50. U.S. Const. amend. VII.


several states." However, the Supreme Court has vacillated onjust how much history the Seventh Amendment imports.

In Slocum v. New York Life Insurance Co.,' the SupremeCourt considered the constitutional power of trial and appellatecourts to enter judgment as a matter of law. In that case, thedefendant moved for judgment as a matter of law at the close ofthe evidence on the ground that the evidence was insufficient tosupport a verdict. The trial court denied the motion, and the juryreturned a plaintiff's verdict. The defendant moved for judgmentas a matter of law after the jury's verdict. The trial court againdenied the motion and entered judgment on the verdict. Theappellate court found the evidence insufficient and reversed withinstructions to enter judgment for the defendant. 3 The SupremeCourt, in a 5-4 decision, held that the Seventh Amendment'sreexamination clause precluded the entry of judgment for thedefendant after the jury returned a verdict. 4

The majority took a strict historical view of the SeventhAmendment. The majority argued that, once the jury returned averdict, the most an English court in 1791 could do if it believedthe evidence insufficient was order a new trial.5 The only wayan English court could have removed a case from the jury andentered judgment based on insufficient evidence was by ademurrer to the evidence, which involved a very differentprocedure from the modem motion for judgment as a matter oflaw. 6 The demurrer to the evidence was made prior to the jury's

51. See e.g. Dimick v. Shiedt, 293 U.S. 474, 476 (1935); Capital Traction Co. v. Hof,174 U.S. 1, 13 (1899); see also U.S. v. Wonson, 28 F. Cas. 745, 750 (Mass. Cir. 1812)(Story, J.) (noting that "[b]eyond all question, the common law here alluded to is not thecommon law of any individual state,. . . but it is the common law of England, the grandreservoir of all our jurisprudence"). Interestingly, since 1933 there has been no generalright to a jury trial in English civil cases. See Patrick Devlin, Jury Trial of Complex Cases:English Practice at the Time of the Seventh Amendment, 80 Colum. L. Rev. 43, 106 n. 286(1980).

52. 228 U.S. 364 (1913).53. See id. at 369.54. See id. at 399.55. See id. at 380 (arguing that a verdict unsupported by the evidence "could be

corrected on writ of error only by ordering a new trial").56. There were two procedures that permitted an English court to enter judgment for a

verdict loser. First, a defendant could move for judgment non obstante veredicto (i.e.,notwithstanding the verdict) on the ground that the plaintiff's pleading allegations failed tostate a claim. Second, the plaintiff could move to arrest judgment on the verdict where thedefendant confessed the truth of the complaint's allegations and set up a matter in


verdict, not after. It required the movant to accept all theopposing party's evidence. If the demurrer was sustained, thetrial court entered judgment for the movant. If the demurrer wasoverruled, the trial court entered judgment for the partyopposing the movant. The trial court's determination could bereviewed on appeal, and the English appellate court had theopportunity to enter judgment for either party. Because thedemurrer created a dispositive question of law for the court, thejury was discharged once the demurrer was made.57 Thus, by itsvery nature, the demurrer to the evidence precluded entry ofjudgment by any court after the jury returned a verdict.

The four dissenters in Slocum believed that the majorityhad engaged in unnecessary formalism. The dissenters arguedthat, as long as there was some method by which an Englishcourt in 1791 could take the case away from the jury and enterjudgment as a matter of law based on insufficient evidence, theprecise particulars of the English procedure were irrelevant. 8

Having the jury return a verdict simply adds to the court'sconvenience. Because the modern motion for judgment as amatter of law does not require the movant to accept the otherparty's evidence, if a trial judge grants judgment as a matter oflaw prior to a jury verdict and the appellate court reverses, thecase must be remanded for a new trial. However, if the juryreturns a verdict and then judgment as a matter of law is grantedto the verdict loser and the appellate court reverses, judgmentbased on the verdict can simply be reinstated. 59

avoidance that was legally insufficient to constitute a defense. As the Slocum Court noted,each of these procedures is addressed to the legal sufficiency of the pleadings rather than tothe sufficiency of the proof upon which the jury's verdict is based. See id. at 381.

57. See id. at 388-92. At common law, the plaintiff had the right to take a nonsuit andhave his complaint dismissed without prejudice where his proof was insufficient. However,as the Slocum Court noted, this procedure bears little resemblance to the modem motion forjudgment as a matter of law because the nonsuit was voluntary in nature, did not result inthe entry of judgment for the defendant, and did not bar the plaintiff from bringing anothercase based on the same claim. See id. at 392-94.

58. See id. at 408 (arguing that "[tihe Seventh Amendment, it cannot be doubted, dealswith matters of substance and not with mere matters of form"); see id. at 423 (concludingthat "the point is not that the ordinary practice on a motion for the direction of a verdict isidentical with that on a demurrer to the evidence, but that the latter as well as the formerwas clearly permitted by the Constitution") (Hughes, J., dissenting).

59. See id. at 419 (suggesting that a court should be "authorized to take provisionallythe verdict of the jury to avoid the delay and expense of a new trial in case it should appear


In Baltimore & Carolina Line, Inc. v. Redman,60 theSupreme Court overruled Slocum in everything but name andadopted the position urged by the Slocum dissenters. In Redman,the defendant moved for judgment as a matter of law prior to theverdict. The trial court reserved its ruling and submitted the caseto the jury. After the jury returned a plaintiff's verdict, the trialjudge denied the motion for judgment as a matter of law andentered judgment on the verdict. The court of appeals held thatthe evidence was insufficient to support the verdict and reversedwith instructions to grant a new trial on authority of Slocum.61

A unanimous Supreme Court held that the court of appealsshould have directed entry of judgment for the defendant.6 TheCourt distinguished Slocum on the ground that the trial courtreserved decision on the motion for judgment as a matter of lawprior to the jury's verdict.63 In Slocum, this first motion hadsimply been denied by the trial court. The Court referenced anEnglish practice whereby a trial judge could take a jury's verdictsubject to reserved questions of law and, based on thedetermination of the reserved questions, enter judgment for theverdict loser.64 The Court seemed unconcerned that its historicalanalogue involved questions of law other than demurrers to theevidence. As already noted, the demurrer to the evidenceresulted in the discharge of the jury.65

on a careful consideration of the evidence that it involved a dispute of fact which the juryshould have resolved").

60. 295 U.S. 654 (1935).61. See id. at 656.62. See id. at 66 1.63. Fed. R. Civ. P. 50(b) codifies this result by providing:

If, for any reason, the court does not grant a motion for judgment as a matter oflaw made at the close of all the evidence, the court is considered to havesubmitted the action to the jury subject to the court's later deciding the legalquestions raised by the motion.

Fed. R. Civ. P. 50(b) (West Group 2000). Thus, even if the court denies a motion forjudgment as a matter of law made at the close of the evidence, the motion is deemed to bereserved. Rule 50(b) solves any lingering Seventh Amendment problems flowing fromSlocum unless a party neglects to make a motion for judgment as a matter of law prior tothe jury retiring.

64. See Redman, 295 U.S. at 659.65. See supra text accompanying n. 57. The approach of Redman was applied in

Galloway v. U.S., 319 U.S. 372 (1943). In Galloway, the Supreme Court upheld againstSeventh Amendment attack a trial court's entry of judgment as a matter of law prior to anyjury determination. The Court relied primarily on the historical analogue of a demurrer to


It was an appellate court in Redman rather than the trialcourt that directed entry of judgment as a matter of law. Thus,the Neely Court, relying on Redman, saw "no greater restrictionon the province of the jury when an appellate court entersjudgment [as a matter of law] than when a trial court does" andheld that the Seventh Amendment constitutes no bar to appellatedirection of entry of judgment as a matter of law.66 Weisgramsimply relied on Neely for the same proposition.

The Supreme Court's decision in Gasperini v. Center forHumanities, Inc.6 -which intervened between Neely andWeisgram and was not cited in Weisgram-casts some doubt onthe view that it is irrelevant for Seventh Amendment purposeswhich level of court enters judgment as a matter of law.Gasperini involved a diversity case decided under New Yorksubstantive law. The case focused on a New York tort reformmeasure that permits a trial judge, or the New York AppellateDivision, to review the size of a jury's verdict and order a newtrial whenever the verdict deviates materially from theevidence.6 ' Gasperini held that a federal district court inexamining the jury verdict for excessiveness must apply theNew York "deviates materially" standard ° rather than a federalstandard that makes it more difficult to displace the jury's

the evidence. The Court rejected the three dissenters' argument that there were twosignificant procedural differences between modem and common law practice. See id. at402-05 (Black, J., dissenting). First, at common law, a demurrer to the evidence could besustained only if the party opposing the motion presented absolutely no evidence in supportof some aspect of his case (the so-called "scintilla rule"). In Galloway, judgment as amatter of law was granted because the verdict was not supported by "substantial"evidence. See id. at 395. Currently, the motion is granted if the jury's verdict isunreasonable in light of all the evidence. See supra n. 8 (discussing the granting ofjudgment as a matter of law before the jury returns a verdict). Second, a party making ademurrer to the evidence took a greater risk than a party making a motion for judgment as amatter of law because the demurrer required the movant to admit the opposing party'sevidence and risk entry of judgment for the opposing party. If a modem motion forjudgment as a matter of law is denied, the case proceeds to the jury. Thus, Redman andGalloway make it easier for the judge to displace the jury than the common law procedure.As a consequence, whether this is viewed a positive or negative development, there hasclearly been some diminution of the Seventh Amendment's guarantee of a jury trial.

66. Neely, 386 U.S. at 322.67. See Weisgram, 528 U.S. at 449.

68. 518 U.S. 415 (1996).

69. See id. at 422-25.70. See id. at 426-3 1.


verdict, the so-called "shock the conscience" standard.7 TheCourt saw no Seventh Amendment problems with this resultbecause English trial judges in 1791 could grant new trials basedon the excessiveness of verdicts.72

The Court had more difficulty with the New Yorkprovision that allows an appellate court to reverse a trial judge'sdenial of a new trial motion if the appellate court finds that theamount of the verdict deviates materially from the evidence.73

Gasperini held that federal rather than state law governs thestandard of appellate review and that federal law permits reviewof a district judge's denial of a new trial motion only for abuseof discretion.74 The Court found this federal standard of reviewconsistent with the Seventh Amendment.75 The Gasperini Courtviewed its Solomonic decision as balancing the interests of theNew York tort-reform scheme and federal jury trial interests. 76

Thus, Gasperini suggests that a federal district court may havemore j ower to displace a jury's verdict than a federal appellatecourt.

Does Gasperini imply that the Weisgram Court erred inholding that a federal appellate court's power to direct entry ofjudgment as a matter of law was coordinate with a districtcourt's? Although the Weisgram Court's failure to discussGasperini is troubling, it would be wrong to take this view ofGasperini. Gasperini does more to confirm than deny the looserhistorical approach to the Seventh Amendment represented byRedman and, indirectly, by Neely and Weisgram. AlthoughEnglish trial courts had the power to grant new trials based onthe excessiveness of verdicts, English appellate courts had nosuch power. They could only review trial court judgments for

71. The New York standard was enacted to give the courts greater control over juryawards. See id. at 422-24.

72. See id. at 433.73. Id. at 434 (noting that "appellate review of a federal trial court's denial of a motion

to set aside a jury's verdict as excessive is a relatively late, and less secure, development").74. See 0. at 437-38.75. See id. at 434-36.76. See i0. at 436-38.77. Indeed, one Justice dissented to "reject the suggestion that the Seventh Amendment

limits the power of a federal appellate court sitting in diversity to decide whether a jury'saward of damages exceeds a limit established by state law." Id. at 439 (Stevens, J.,dissenting).


errors of law and could not inquire into the factual sufficiency ofverdicts. Three dissenters in Gasperini argued, therefore, thatthe Seventh Amendment precludes any appellate review of adistrict judge's denial of a new trial motion." The majority didnot take issue with the accuracy of the dissenters' historicalrendition. Rather, it argued that "appellate review for abuse ofdiscretion is reconcilable with the Seventh Amendment as acontrol necessary and proper to the fair administration ofjustice." 79 Thus, the majority justified appellate review on policyrather than historical grounds. If the looser historical approach tothe Seventh Amendment is correct, it would not seem to matterwhich level of court displaces a jury's verdict as long as someEnglish judge had an analogous power in 1791.

Moreover, although the Gasperini majority did not permitappellate courts the same latitude as district courts in reviewingjury verdicts for excessiveness, Gasperini did not squarely holdthat the Seventh Amendment requires this result. It held onlythat abuse of discretion review is consistent with the SeventhAmendment. In Byrd v. Blue Ridge Rural Electric Cooperative,Inc.,80 upon which the Gasperini Court relied," the SupremeCourt held that federal law (which relegated a particular factquestion to the jury) prevailed over state law (which relegatedthe question to the judge) in a diversity case based on the strongfederal policy in favor of jury trials flowing from the SeventhAmendment. Byrd reached this result without consideringwhether the Seventh Amendment mandated a jury trial on theinstant facts."- Similarly, Gasperini's choice of the federal abuseof discretion standard in a diversity case does not necessarilyindicate that broader appellate review would violate the SeventhAmendment. Gasperini is best viewed as a Byrd-inspireddecision that does not preclude an appellate court fromexercising the same power to review a jury's findings forsufficiency of the evidence as a trial court.83

78. See id. at 450-54 (Scalia, J., dissenting).

79. Gasperini, 518 U.S. at 435.80. 356 U.S. 525 (1958).81. Gasperini, 518 U.S. at 431-33, 436-38.

82. See Byrd, 356 U.S. at 537 n. 10.83. Moreover, Weisgram presents a stronger case than Gasperini for permitting

appellate courts to exercise the same power as trial courts in reviewing jury verdicts


B. 28 U.S.C. § 2106

In granting appellate jurisdiction to the federal appellatecourts, Congress has provided:

The Supreme Court or any other court of appellatejurisdiction may affirm, modify, vacate, set aside or reverseany judgment, decree, or order of a court lawfully broughtbefore it for review, and may remand the cause and directthe entry of such appropriate judgment, decree, or order, orrequire such further proceedings to be had as may be justunder the circumstances. 4

Because the statute permits any federal appellate court tovacate any appealed judgment and "direct the entry of suchappropriate judgment ... as may be just under thecircumstances," Neely held85 and Weisgram reaffirmed 6 that afederal appellate court has the power to direct entry of judgmentfor a verdict loser.

To some extent this holding is circular. It depends on theother conclusions argued in Part II of this article: An appellatecourt's direction to enter judgment is consistent with theSeventh Amendment and Rule 50 of the Federal Rules of CivilProcedure. If an appellate court's direction of entry of judgmentviolated either provision it could not possibly be classified as"appropriate." Moreover, it would seem that the considerationsof Part III.A of this article are also relevant because, if policywere to dictate that fundamental unfairness would result from anappellate court's direction to enter judgment, such directionwould not be appropriate.87 Thus, the construction of 28 U.S.C. §2106 by Neely and Weisgram suggests only that as long as noother legal provisions are violated, and sound policy isfurthered, a federal appellate court has the power to direct entry

because, although English appellate courts had no power to reverse the denial of new trialmotions, they possessed de novo review with respect to decisions granting or denyingdemurrers to the evidence. See supra text accompanying n. 57.

84. 28 U.S.C. § 2106 (1994).85. Neely, 386 U.S. at 322,86. Weisgram, 528 U.S. at 449.87. See Neely, 386 U.S. at 338-39 (Black, J., dissenting) (arguing that appellate

direction of judgment is not appropriate under 28 U.S.C. § 2106 because Rule 50 andsound policy do not permit it).


of judgment as a matter of law. Although this conclusion isobviously correct, it proves very little.

C. Federal Rule of Civil Procedure 50

Rule 50 of the Federal Rules of Civil Procedure8 governsmotions for judgment as a matter of law and conditional newtrial motions appended thereto. Although Neely and Weisgramare principally concerned with Rule 50(d), it is worthconsidering Rule 50 as an integrated whole.

Any party seeking judgment as a matter of law must somove prior to submission of the case to the jury. 9 If the trialcourt denies the motion, it is deemed to reserve decision andtake the jury's verdict subject to the motion.9 ° This proceduregives the verdict loser the opportunity to renew its motion forjudgment as a matter of law after the jury returns a verdict.9 Ifthe verdict loser fails to renew his motion for judgment as amatter of law, the most the trial or appellate court can do is ordera new trial. A verdict loser may join its renewed motion forjudgment as a matter of law with a conditional motion for a newtrial.92 If the trial court grants judgment as a matter of law to theverdict loser, it is also required to rule on the conditional motionfor a new trial.93 If the appellate court reverses the grant ofjudgment as a matter of law, it then has the opportunity toreview the trial court's decision on the conditional new trialmotion.

Rule 50(c)(2) and Rule 50(d) deal with the verdict winner'snew trial rights. If the trial court grants the verdict loser'srenewed motion for judgment as a matter of law, the verdict

88. Fed. R. Civ. P. 50 (West Group 2000).89. See Fed. R. Civ. P. 50(a)(2). Consistent with the Seventh Amendment, the district

court may grant the motion of judgment as a matter of law without submitting the case tothe jury or reconsider the motion after the jury's verdict. However, the district court maynot grant a motion for judgment as a matter of law that is made for the first time after thejury's verdict. See supra n. 63 & text accompanying nn. 48-63.

90. See Fed. R. Civ. P. 50(b). This reservation permits the district court to grantjudgment as a matter of law subsequent to the jury verdict without violating the SeventhAmendment. See supra text accompanying nn. 57-63.

91. See Fed. R. Civ. P. 50(b).

92. See id.93. See Montgomery Ward & Co. v. Duncan, 311 U.S. 243 (1940); Fed. R. Civ. P.

50(c)(1).


winner has ten days to move for a new trial in the district court.94

If the trial court denies the verdict loser's renewed motion forjudgment as a matter of law and the verdict loser appeals, theverdict winner may urge as appellee any grounds entitling himto a new trial in the event the appellate court holds that the trialcourt erred in denying the verdict loser's renewed motion forjudgment as a matter of law.9 If the court of appeals holds thatthe trial court erred in denying the verdict loser's renewedmotion for judgment as a matter of law, the court of appeals mayresolve the new trial motion or remand to the district court for adetermination of whether a new trial should be held.96

Thus, Rule 50 contemplates that the verdict loser will makeall challenges to the verdict in district court, including anymotions for a new trial. It contemplates that the district courtwill make the initial determination of whether a new trial shouldbe granted. The verdict winner, by contrast, is entitled to anopportunity to make a conditional new trial motion in the districtcourt but is not always required to make such a motion. Rule 50contemplates that the verdict winner may make his conditionalnew trial motion for the first time in the court of appeals.

It is worth examining each half of the verdict winner'ssituation relative to any conditional new trial motion. First, theverdict winner is entitled to the opportunity to make aconditional new trial motion in the district court. It is for thisreason that the Supreme Court held, in Cone v. West VirginiaPulp & Paper Co.,i' that a verdict loser may not receivejudgment as a matter of law unless he renews such motion afterthe jury returns a verdict.98 This renewed motion gives theverdict winner the opportunity to present any new trial groundsto the district court. Cone squarely rejected the contention that averdict winner's rights are adequately protected by the

94. See Fed. R. Civ. P. 50(c)(2).95. See Fed. R. Civ. P. 50(d).96. See id.97. 330 U.S. 212 (1947).98. The holding in Cone has continually been reaffirmed by the Supreme Court. See

Johnson v. N.Y., N.H. & Hartford R.R. Co., 344 U.S. 48 (1952); Weade v. Dichinann,Wright & Pugh, Inc., 337 U.S. 801 (1949); Fountain v. Filson, 336 U.S. 681 (1949); GlobeLiquor Co. v. San Roman, 332 U.S. 571 (1948).


opportunity to make new trial arguments in the court ofappeals.99

Second, the verdict winner is not required to presentpotential grounds for a new trial until and unless some courtdetermines that judgment should be entered for the verdict loser.The verdict winner may oppose the verdict loser's renewedmotion for judgment as a matter of law and make a conditionalnew trial motion in the district court. However, the verdictwinner may also wait until ten days after the district court grantsthe verdict loser's renewed motion for judgment as a matter oflaw before moving for a new trial.'°° If the trial court denies theverdict loser's renewed motion for judgment as a matter of law,the verdict winner has similar latitude in the court of appeals.The verdict winner may urge conditional new trial grounds inthe court of appeals as part of the original argument of the caseor may present such grounds to the court for the first time in apetition for rehearing in the event the court of appeals holds thatthe district court erroneously denied judgment as a matter of lawto the verdict loser.'c

One may well ask why the verdict winner is not treated thesame as the verdict loser with respect to conditional new trialmotions? Why is the verdict winner not required to urge anynew trial grounds on the district court in the first instance so thatthe appellate court is presented with a complete record forreview? The asymmetry in Rule 50 is explained by theawkwardness of urging new trial grounds at the same time one istrying to defend a verdict and judgment.' 2 Urging grounds for anew trial may seemingly undermine the verdict and judgmentone is trying to defend. Moreover, new trial grounds may betaken less seriously by the district court when the court is in the

99. See Cone, 330 U.S. at 216 (arguing that "[d]etermination of whether a new trialshould be granted or a judgment entered under Rule 50 (b) calls for the judgment in thefirst instance of the judge who saw and heard the witnesses and has the feel of the casewhich no appellate printed transcript can impart" ).

100. See Neely, 386 U.S. at 325 (noting that "[w]here a defendant moves for [judgmentas a matter of law] in the trial court, the plaintiff may present, in connection with thatmotion or with a separate motion after [judgment as a matter of law] is granted, his groundsfor a new trial"); see Fed. R. Civ. P. 50(c)(2).

101. See Weisgran, 528 U.S. at 455; Neely, 386 U.S. at 328-29.

102. See Weisgram, 528 U.S. at 455 n. I I (recognizing that "it is awkward for anappellee, who is wholeheartedly urging the correctness of the verdict, to point out, in thealternative, grounds for a new trial").


process of entering judgment for the party making theconditional new trial motion.

As a consequence, the verdict winner is privileged, but isnot always required, to present a new trial motion to the districtcourt in the first instance. However, the verdict winner must livewith the consequences of this choice. If the verdict winnerchooses to save his new trial motion for the court of appeals, heshould not be surprised that the court of appeals, in appropriatecases, has the power to deny the motion without a remand to thedistrict court. Although Rule 50(d) stipulates that the court ofappeals may remand the case to the district court for an initialdetermination of the verdict winner's conditional new trialmotion, the rule is phrased in permissive terms.' °3 This languageimplies that the court of appeals is not required to remand andmay deny the new trial motion on its own and direct entry ofjudgment as a matter of law for the verdict loser. Where theverdict winner seeks to guarantee that the district court will ruleon his conditional new trial motion in the first instance, heshould make the motion in district court.

D. Conclusion

There is no affirmative reason that precludes a federalappellate court from directing entry of judgment as a matter oflaw. The Seventh Amendment, 28 U.S.C. § 2106, and Rule 50of the Federal Rules of Civil Procedure all permit such action.As Part III.A argues, there are sound policy justifications forallowing appellate courts in some cases finally to resolve caseswithout remanding for a trial court's consideration of a verdictwinner's new trial motion. As a consequence, Neely and

103. Fed. R. Civ. P. 50(d) provides:

If the appellate court reverses the judgment, nothing in this rule precludes itfrom determining that the appellee is entitled to a new trial, or from directing thetrial court to determine whether a new trial shall be granted.

Id. The dissenter in Neely argued that Rule 50(d) permits the appellate court to grant theverdict winner's new trial motion or remand to the district court but does not permit theappellate court to deny such motion. See Neely, 386 U.S. at 341 (Black, J., dissenting).However, it seems wrong to assume that Rule 50(d) creates any power for the courts ofappeals or denies any power not expressly given by the rule. The rule merely emphasizesthat an appellate court may exercise power to grant the new trial motion or remand thatpresumably flows from a source other than the rule (" nothing in this rule precludes").


Weisgram are correct to hold that federal appellate courts havethe raw power to direct entry of judgment as a matter of law.However, as Part III.B demonstrates, this result hardly meansthat appellate courts should generally or routinely deprive thetrial court of the power to consider a verdict winner's new trialmotion.

III. EXERCISING THE APPELLATE POWER TO DIRECT ENTRY OF

JUDGMENT AS A MATTER OF LAW

In Neely, the Supreme Court held that a federal appellatecourt has the power to direct entry of judgment as a matter oflaw for a verdict loser on the ground that the case submitted tothe jury by the verdict winner was factually insufficient. InWeisgram, the Court extended Neely and held that a federalappellate court may make a similar direction after subtractingevidence on behalf of the verdict winner that was improperlyadmitted at trial. This Part will examine appropriate andinappropriate uses by federal appellate courts of the powergranted by Neely and Weisgram.

A. Situations in Which a Federal Appellate Court Should DirectEntry of Judgment as a Matter of Law

Federal appellate courts should possess the power to directentry of judgment as a matter of law for verdict losers because,in some situations, exercise of this power conserves judicialresources. There are three such situations: (a) where the verdictwinner's grounds for a new trial rest upon legal questions theresolution of which makes it clear that no new trial is warranted;(b) where the verdict winner's grounds for a new trial presentedto the district court could not be sustained as an exercise ofdiscretion; and (c) where the verdict winner presents no groundsfor a new trial and no reason why he should be permitted topresent such grounds to the district court in the first instance.

The Neely Court had the first of these situations squarely inmind:

[W]here the court of appeals sets aside the jury's verdictbecause the evidence was insufficient to send the case tothe jury, it is not so clear that the litigation should be


terminated.... The erroneous exclusion of evidence whichwould have strengthened [the verdict winner's] case is animportant possibility. Another is that the trial court itselfcaused the insufficiency in [the verdict winner's] case byerroneously placing too high a burden of proof on him attrial. But issues like these are issues of law with which thecourts of appeals regularly and characteristically must deal.The district court in all likelihood has already ruled onthese questions in the course of the trial and, in any event,has no special advantage or competence in dealing withthem."°To take Neely's example, suppose that the court of appeals

holds that the district court improperly denied the verdict loser'smotion for judgment as a matter of law, and the verdict winnerargues that the district court erred as a matter of law inexcluding certain of his evidence (e.g., under the hearsay rule),or that the district court erroneously allocated the burden ofproof on a particular issue. In such cases, a remand to the districtcourt for a new trial determination is often unnecessary. Thedistrict court has already made whatever legal rulings the verdictwinner is challenging, and the court of appeals is presented witha full record for review. If the court of appeals holds that thedistrict court committed no legal error in excluding evidence orallocating the burden of proof, there is no reason the court ofappeals should not finally resolve the litigation by directingentry of judgment as a matter of law for the verdict loser.

However, if the court of appeals holds that the district courterred in excluding evidence or allocating the burden of proof,the appropriate resolution is not so clear. It may still beappropriate for the court of appeals to direct entry of judgmentas a matter of law for the verdict loser. Perhaps the verdictloser's case is so strong that no reasonable juror could find forthe verdict winner even if the verdict winner presented hisadditional evidence and the burden of proof were correctlyallocated. In other circumstances, it might constitute an abuse ofdiscretion for the trial court to grant the verdict winner's newtrial motion. '0 5 In these cases, a remand to the district court

104. Neely, 386 U.S. at 327.105. The decision to grant or deny a new trial motion is committed to the sound

discretion of the district court and reviewable on appeal only for abuse of discretion. Seee.g. Gasperini, 518 U.S. at 422-23, 437-39.


serves no purpose and unnecessarily wastes judicial resourcesbecause there is only one decision that will withstand appellatereview.'06

Lastly, the court of appeals should direct entry of judgmentas a matter of law whenever the verdict winner presents nogrounds for a new trial and no reason why he should bepermitted to present such grounds to the district court in the firstinstance." 7 This situation occurred in Neely itself.0 8 Under suchcircumstances, a remand is a meaningless formality.

B. Situations in Which a Federal Appellate Court Should NotDirect Entry of Judgment as a Matter of Law

There are, by contrast, three situations in which federalappellate courts should not exercise the NeelylWeisgram powerto direct entry of judgment as a matter of law: (a) where it isunfair to require the verdict winner to present his new trialgrounds to the court of appeals; (b) where the new trial groundsinvolve an exercise of the district court's discretion that wouldbe entitled to respect on appeal; and (c) where the district courtis in a superior position to determine whether a new trial shouldbe granted. The Weisgram case may be used to illustrate eachsituation.

The plaintiff in Weisgram conducted the trial with theunderstanding that the testimony of its experts would beadmissible. Had the district court ruled that the plaintiff'sexperts would not be allowed to testify, the plaintiff would havehad the opportunity to submit other experts or otherwise address

106. As argued in Part III.B, the appellate court should not direct entry of judgment as amatter of law for the verdict loser if a district court's decision to grant the verdict winner anew trial would be affirmed on appeal.

107. Circumstances in which the verdict loser should be permitted to present new trialgrounds to the district court in the first instance are discussed in Part III.B.

108. As the Court noted:In the Court of Appeals the issue was the sufficiency of the evidence and thatcourt set aside the verdict. Petitioner, as appellee, suggested no grounds for anew trial in the event her judgment was reversed, nor did she petition forrehearing in the Court of Appeals, even though that court had directed adismissal of her case.

Neely, 386 U.S. at 329. Although the verdict winner attempted to assert grounds for a newtrial for the first time in the Supreme Court, the Supreme Court declined to considerarguments not presented to the court of appeals. See id. at 330.


the gaps in his case. It is for this reason that some pre-Weisgramcases held that the trial court, much less the court of appeals,lacks the power to enter judgment as a matter of law for theverdict loser after deleting certain of the verdict winner'sevidence:

Although the trial court found insufficient evidence tosustain the verdict, it did so only after excluding plaintiff'sexpert testimony which had been presented to the jury. Thiswas error. In ruling on the sufficiency of evidence the trialcourt must take the record as presented to the jury andcannot enter judgment on a record altered by theelimination of incompetent evidence.... If plaintiff hadbeen forewarned during the trial that such testimony wasnot admissible it conceivably could have sugplied furtherfoundation or even totally different evidence.'After the Eighth Circuit's decision in Weisgram, the gaps in

the plaintiff's case were clear. The plaintiff needed: (a) an experton baseboard heaters rather than electrical, fire, andmetallurgical experts; (b) proof regarding the position of thethrow rug that might have contributed to the transfer of the firefrom the heater to the sofa; and/or (c) proof regarding thepotential for the flooring materials to heat up and give off vaporsthat might ignite." ° Thus, the first time the plaintiff could haveoffered new evidence and moved for a new trial with awarenessof the defects in his case would have been in a petition forrehearing in the court of appeals."' As Weisgram confirms, theplaintiff was entitled to present his new trial grounds in such apetition. ,,2

However, it was unfair to force the plaintiff to present hisnew trial grounds to the court of appeals in a petition for arehearing rather than to the district court. The plaintiff had onlyfourteen days to petition the court of appeals for rehearing."3 It

109. Midcontinent Broad. Co. v. N.C. Airlines, Inc., 471 F.2d 357, 358-59 (8th Cir.1973); see also supra n. 40 (collecting cases).

110. See supra text accompanying nn. 33-35.11I. See Martin B. Louis, Post-Verdict Rulings on the Sufficiency of the Evidence:

Neely v. Martin K. Eby Construction Co. Revisited, 1975 Wis. L. Rev. 503, 519 n. 90(observing that "it is often difficult to argue that a gap in one's proof can be filled before acourt has held that the gap exists").

112. See Weisgram, 528 U.S. at 455 & n. 11.113. See Fed. R. App. P. 40 (West Group 2000).


is unfair to expect the plaintiff to put together a new case infourteen days.' 14 Had the case been remanded, the district courtmight have allowed the plaintiff a reasonable time to proffernew evidence."' Moreover, petitions for rehearing are routinelydenied by the courts of appeals."' Forcing a verdict winner tomove for a new trial at this stage makes it extraordinarilyunlikely that many new trials will be granted.

The Weisgram Court argued that it is fair to allow the courtof appeals to direct entry of judgment as a matter of law afterexcluding certain evidence relied on by the verdict winnerbecause parties should generally be expected to put forwardtheir best cases in district court. The Court also emphasized thatthe verdict winner was on notice that his experts were subject toDaubert challenge and should have been Prepared for thepossibility that his experts would be excluded.'

Neither of these arguments is persuasive. The verdictwinner surely did not withhold evidence in district court. Hepresented three experts-not one. Until the court of appealsacted, he had no way of knowing that he needed a heater expertand other physical proof. Until that time, he had every right tobelieve that he presented evidence from which a reasonable jury

114. The Weisgram Court argued that the fourteen-day period allowed for rehearingpetitions was longer than the ten-day period allowed for new trial motions in the districtcourt by a verdict winner after the district court grants the verdict loser's motion forjudgment as a matter of law. See Weisgram, 528 U.S. at 455 n. 11; Fed. R. Civ. P. 50(c)(2).However, where the district court believes that the plaintiff is entitled to more time toprepare his case, the district court always has the power to allow the plaintiff to take avoluntary dismissal without prejudice. See Neely, 386 U.S. at 328 (noting that "[a] plaintiffwhose jury verdict is set aside by the trial court on defendant's motion for judgment [as amatter of law] may ask the trial judge to grant a voluntary nonsuit to give plaintiff anotherchance to fill a gap in his proof"); Fed. R. Civ. P. 41(a)(2) (permitting the district court todetermine the circumstances pursuant to which a plaintiff will be permitted voluntarily todismiss his action without prejudice).

115. There are no time limits in the Federal Rules of Civil Procedure on the ability topetition the district court for a new trial after an appellate reversal. Cf. Fed. R. Civ. P.50(c)(2) (allowing a verdict winner ten days after the district court grants the verdict loserjudgment as a matter of law to petition for a new trial); Fed. R. Civ. P. 59(b) (allowing ajudgment loser ten days to petition the district court for a new trial).

116. For example, the Fifth Circuit clerk's office reports that, for the year endingSeptember 30, 2000, only fourteen petitions for panel rehearing were granted out of a totalof 523 (i.e., 2.7%). Clerk's Office,United States Court of Appeals for the Fifth Circuit,Statistical Snapshot, <http:www.ca5.uscourts.gov/clerk/APPENDIXIREV.htm> (accessedMay 23, 2001).

117. See supra n. 44 and accompanying text.


could conclude that a defect in the heater caused the fire thatkilled Bonnie Weisgram.

Moreover, the verdict winner could not have known that hisexperts would be excluded by a Daubert analysis. In Daubert,the Supreme Court set forth four factors that guide considerationof whether an expert's theory is sufficiently reliable to assist thetrier of fact: (a) the extent to which the theory has been and canbe tested;" 8 (b) the extent to which the theory has been subjectedto publication and peer review; ' (c) the theory's known orpotential rate of error and the existence and maintenance ofstandards that control the theory's operation;'2 ° and (d) the extentto which the theory is generally accepted by other experts in thesame field. 2'

This four-factor test is hardly straightforward and easy toapply."' Four judges passed on the Daubert question inWeisgram. 3 Two judges (the district judge and the dissenter inthe court of appeals) found that the verdict winner's expertspassed Daubert scrutiny.'24 Two judges (the court of appeals'smajority) found the experts' testimony inadmissible underDaubert.25 Thus, the Daubert result is hardly something theverdict winner could have forecast.

Nor is it fair to suggest that the verdict winner should haveunderstood in advance the grounds on which his experts wouldbe excluded or what other experts might be allowed to testify.Under these circumstances, the verdict winner should not havebeen expected to produce new experts, which may entailsubstantial expense, or other evidence within fourteen days afterthe court of appeals's decision.

118. See Daubert, 509 U.S. at 593.119. See id. at 593-94.120. See id. at 594.121. See id.122. On the difficulty of applying the Daubert test, see generally Michael H. Graham,

The Expert Witness Predicament: Determining "Reliable" Under the Gatekeeping Test ofDaubert, Kumho, and Proposed Amended Rule 702 of the Federal Rules of Evidence, 54 U.Miami L. Rev. 317 (2000).

123. The Supreme Court declined to address this issue. See Weisgramn, 528 U.S. at 447n. 3.

124. See id. at 444; Weisgram, 169 F.3d at 522-25 (Bright, J., dissenting).125. See Weisgram, 169 F.3d at 517-22.


Weisgram may be used to illustrate a second circumstancein which the court of appeals should remand to the district courtrather than direct entry of judgment as a matter of law. Supposethat the verdict winner in Weisgram had identified otherpotential experts and asked the court of appeals for a new trialon this ground. Under Daubert, whether to allow such testimonylies within the discretion of the trial court and is reviewable onappeal only for abuse of discretion.'26 In this circumstance, thecourt of appeals should refuse to remand only if it finds thatallowing the new experts to testify would constitute an abuse ofthe district court's discretion. In any other circumstance, thecourt of appeals has usurped the power of the district court.'27

Finally, suppose that the plaintiff and verdict winner inWeisgram tried to shore up his physical evidence in a petitionfor rehearing after the appellate court's decision. Suppose thatthe plaintiff had new evidence to present with respect to theposition of the throw rug that may have assisted in linkingexcess heat created by the baseboard heater to the igniting of thesofa, or evidence of the capacity of the flooring materials to heatup and give off gases that could ignite. Would this evidence inconjunction with the portions of the plaintiff's expert testimonythat the court of appeals permitted be sufficient to get theplaintiff a new trial?

This type of decision is best reserved to the trial court. Incomplicated factual situations such as Weisgram, the districtcourt is better positioned to evaluate whether a reasonable jurycould find for the plaintiff with the introduction of additionalevidence."' As the Neely Court noted: the verdict winner "mayhave valid grounds for a new trial, some or all of which shouldbe passed upon by the district court, rather than the court of

126. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 139 (1997).

127. Similarly, the court of appeals should remand where the verdict winner tendered

additional admissible evidence that was excluded as cumulative by the district court. Cf.Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1200 (3d Cir. 1993) (recognizing that, inthis circumstance, it would be unfair for a district court to grant judgment as a matter oflaw for a verdict loser without considering all evidence admitted on behalf of the verdict

winner).

128. The reasonable juror standard determines whether a party is entitled to judgment asa matter of law. Anderson, 477 U.S. at 255-56. Obviously, if no reasonable juror could findfor the plaintiff even with the introduction of the verdict winner's new evidence, there is noreason to do anything other than enter judgment as a matter of law for the verdict loser.


appeals, because of the trial judge's first-hand knowledge ofwitnesses, testimony, and issues-because of his 'feel' for theoverall case." 129

It is true that the verdict winner in Weisgram neverpresented any grounds for a new trial and never suggested to thedistrict court or the court of appeals any additional experttestimony or physical evidence that he might introduce. 3

Perhaps the verdict winner had no such evidence. Perhaps this iswhat the court of appeals meant when it noted that "this is not aclose case." ' If the plaintiff had no other evidence, there is nodifficulty in the court of appeals directing entry of judgment as amatter of law for the verdict loser. However, it seems that theverdict winner was entitled to a fair opportunity to developadditional evidence in the district court, and the district courtwas entitled, and in a better position to determine, whether anysuch additional evidence warranted a new trial.

IV. CONCLUSION

Neely and Weisgram hold that a federal appellate courtpossesses the raw power to direct entry of judgment as a matterof law pursuant to the Seventh Amendment, 28 U.S.C. § 2106,and Rule 50 of the Federal Rules of Civil Procedure. Theseholdings are correct and justified as a matter of policy becausein many cases the Court's procedure conserves judicialresources. However, the Weisgram Court suggests that theappellate power to direct entry of judgment as a matter of lawmay be liberally exercised. Weisgram itself and some post-Weisgram cases have followed this suggestion.'32

This latter development should give us pause. A federalappellate court should direct entry of judgment as a matter oflaw for a verdict loser without giving the verdict winner anopportunity to present new trial grounds to the district court onlywhere: (a) the verdict winner's grounds for a new trial rest upon

129. Neely, 386 U.S. at 325.130. See Weisgram, 528 U.S. at 456.131. Weisgram, 169 F.3d at 517 n. 2.132. See e.g. Smith v. Leggett Wire Co., 220 F.3d 752, 763 (6th Cir. 2000); Wyvill '.

United Companies Life Ins. Co., 212 F.3d 296, 306 (5th Cir. 2000); Concord Boat Corp. v.Brunswick Corp., 207 F.3d 1039, 1057 (8th Cir. 2000).


legal questions the resolution of which makes it clear that nonew trial is warranted; (b) the verdict winner's grounds for anew trial presented to the district court could not be sustained asan exercise of discretion; and (c) the verdict winner presents nogrounds for a new trial and no reason why he should bepermitted to present such grounds to the district court in the firstinstance. Conversely, a federal appellate court holding that adistrict court erroneously denied a verdict loser's motion forjudgment as a matter of law should allow the district to resolveany new trial motion by the verdict winner where: (a) it is unfairto require the verdict winner to present his new trial grounds tothe court of appeals; (b) the new trial grounds involve anexercise of the district court's discretion that would be entitledto respect on appeal; and (c) the district court is in a superiorposition to determine whether a new trial should be granted. Onthe facts of Weisgram itself, it appears that the verdict winnershould have received the opportunity to present any new trialgrounds to the district court.

A return to Neely's healthy respect for the manycircumstances in which a verdict winner's new trial motion isbest decided by the district court would be welcome. Otherwise,the Neely/Weisgram rule that federal appellate courts have thepower to direct entry of judgment as a matter of law may wellhave more costs than benefits.

the power of a federal appellate court to direct entry of

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